Asif Saeed Khan Khosa, J.--Asad Khan appellant had allegedly murdered his wife namely Mst.
Zahida Shamim and their two minor children namely Muhammad Arshad, aged about five years, and Muhammad Arman, aged about 7/8 months, inside the house of the appellant with the use of a hatchet at about 10.30 A.M. on 30.07.2008 in village Tala Baangi Khel in the area of Police Station Baangi Khel, District Mianwali. It was alleged by the prosecution that the said murders had been committed by the appellant in the backdrop of strained relations between the appellant and his wife. With the said allegations the appellant was booked in case FIR No, 27 registered at the above mentioned Police Station on the same day and after a regular trial the appellant was convicted by the trial Court on three counts of the charge under Section 302(b), PPC and was sentenced to death on all the counts and to pay compensation which convictions and Sentences of the appellant were later on upheld, and confirmed by the High Court. Hence, the present' appeal by leave of this Court granted on 21.10.2013.
2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.
3. According the prosecution the incident in issue had been witnessed by 'Ghulam Jan complainant (PW9), father of Mat. Zahida Shamim deceased and a grand father of Muhammad Arshad and Muhammad Arman deceased, Khizar Hayat and Jan Muhammad but during the trial Khizar Hayat and Jan Muhammad PWs had been given up by the prosecution as having been won over as they had refused to support the prosecution's case against the appellant. The solitary eye- witness deposing before the trial Court was Ghulam Jan complainant who was not only the father of one of the deceased but was also admittedly a chance witness who had come to the place of occurrence from District Faisalabad situated more than 200 miles away from the scene of the crime. The stated reason for visit of the complainant to the spot had never been substantiated or established before the trial Court through any independent evidence whatsoever. Muhammad Tariq Mehmood (DW-1) had produced a register of attendance before the trial Court establishing that on 29.07.2008 as well as on 30.07.2008 Ghulam Jan complainant was very much in attendance at his place of work in Faisalabad and there was no earthly reason to attribute any motive to the said witness to falsely depose before the trial Court in order to save the appellant's skin. It is important to mention here that the very first sentence of the FIR lodged by the complainant showed that he admitted working as a regular employee at Faisalabad and he had never claimed that on the day' of occurrence he was on leave. The said solitary eye-witness produced by the prosecution had failed to receive any independent corroboration or support inasmuch as the motive set up by the prosecution was never established through any independent evidence, the alleged recovery of a hatchet from the appellant's possession during the investigation was unbelievable as the said hatchet had statedly been recovered from an open field belonging to somebody else and the Investigating Officer had conceded before the trial Court that at the time of its recovery the hatchet was not stained with blood. The medical evidence did not support the case of the prosecution for the simple reason that post-mortem examination of the deadbodies had been conducted after more than 17/18 hours of the alleged occurrence. The said delay in conducting post-mortem examination of the deadbodies indicated that time had been consumed by the complainant party and the local police in procuring and planting eye- witnesses and in cooking up a story for the prosecution. All these factors have gone a long way in convincing us that the prosecution had not been able to prove its case against the appellant beyond reasonable doubt.
4. It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCM R 1524) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCM R 710) the said legal position had been elaborated and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house. It had, however, been held in the case of Abdul Majeed v. The State (2011 SCM R 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stanes demolished and, thus, we cannot sustain the appellant's conviction and sentence merely on the basis of an inference or a supposition qua his involvement.
5. For what has been discussed above this appeal is allowed, the convictions and sentences of the appellant recorded and upheld by the Courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case discretion to extend the time, reliance has been placed on the judgment of this Court in the case titled Muhammad Ramzan us.
Muhammad Bakhsh (PLD 2012 SC 764).
6. We have heard the contentions of learned counsel for the parties and have perused the record.
7. Since the controversy revolves around the interpretation of Section 24 of the Act, 1991, therefore, in order to reach at a just & fair conclusion, it would be beneficial to reproduce the said section which reads as follows: "24. Plaintiff to deposit sale price of the property. (1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated; the Court shall require deposit of one-third of the probable value of the property.
(2) Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court or withdraws the sum so deposited by him., his suit shall be dismissed.
(3) Every sum deposited under sub-section (1) shall be available for the discharge of costs.
(4) The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emptor.
8. A bare perusal of section ibid leaves no doubt in our mind that the Court is bound to require the pre-emptor to deposit one-third of the sale price (zar-e-soim) of the property sought to be pre- empted within a period left to the discretion of the Court. However, through first proviso of the. section ibid such discretion is circumscribed/restricted by a maximum of 30 days from the date of filing of the suit meaning thereby that the Court may require the preemptor to deposit the zar-e- sotm within a period ranging from one day to thirty days but under no circumstances the Court is left with any power/discretion to allow the pre-emptor to make deposit of the zar-esoim beyond the period of 30 days. The first proviso places a specific embargo/restriction on the powers of the Court from extending the time for deposit of zar-e-soim beyond the period of 30 days to be reckoned .from the date of filing the suit beside sub-section (2) provides penal consequence for not depositing the zar-esoim within a period of 30 days by dismissal of the pre-emptor suit. This is the settled law and has been reiterated time and again by this Court in its number of pronouncements, reference can readily be made to the cases of Muhammad Ramzan an vs. Muhammad Bakhsh (PLD 2012 SC 764), Hasnuin Nawaz Khan vs. Ghulam Akbar (PLD 2013 SC 489) and Raja vs. Thnveer Riaz ( PLD 2014 SC 466).
9. As to the contention that the time in accordance with the first proviso would commence from the day the suit is formally admitted by the Court and not from the date of presenting/filing the suit and/or the date when a formal order directing the pre-emptor to deposit zar-e-soim is passed. A bare perusal of first proviso reflects that the time for deposit of zar-e-soim shall not extend beyond 30 days of the filing of the suit. The term "filing of the suit" has not been defined in the Act, of 1991 itself and to hold that "filing of suit" would be the day when the presiding officer after removal of all office objections directs formal registration of suit by entering it in the institution register would be against the very purposes of the Act, 1991. One has to keep in mind that the purpose of Section 24 of the Act, 1991 is to protect the vendee from frivolous litigation and also to ascertain the capacity of the intending pre-emptor to purchase the property sought to be pre-empted at the time when the property was being sold. Keeping in mind the purpose of such, deposit, to say that period for depositing zar-e-soim would commence from the date of registration of suit would allow the pre- emptor to prolong the foresee able deposit of zar-e-soim by keeping his suit pending in objection which to our mind would frustrate the very purpose of the first proviso. Even otherwise the term "file " per black law dictionary mean to deliver a legal document to the Court clerk or record custodian for placement in the official record. Likewise Rule 1(1) of Order IV CPC provides that every suit shall be instituted by presenting a plaint to the court or such officer as it appoints in this behalf .
Additionally the explanation of section 3 of the Limitation Act also provides that a suit is instituted in ordinary cases when the plaint is presented to the proper officer and therefore in our opinion once the presentation of plaint is accepted by the court or the officer so appointed by the court it would be the date of filing the suit for the purpose of first proviso and the period of 30 days would be reckoned from that day.
10. As to the second limb of the submission i,e, when the suit - after filing is not formally placed in Court for orders or when there is an omission on the part of the Court (like in the instant case) in timely directing the pre-emptor to deposit the zar-e-soim and the pre-emptor takes shelter of sub-section (1) which subjects the deposit under the order of the Court, by taking a defence that since there was no order of the Court directing deposit of zar-e-soim, therefore, pre-emptor could not be penalized by invoking the provisions of sub-section (2) which provides dismissal of suit on account of non-deposit of zar-e-soim within a maximum period of 30 days . Though a pre-emptor it view of sub-section (1) must be ready and have in his pocket the required amount of zar-e-soim at the time of Filing of suit and to show his bona fide should ensure that the order for deposit of zar-e-soim is promptly passed so its compliance be effected in terms of the first proviso. However, since the required deposit is subject to the order of the Court, therefore, in cases where Court omits to pass order or the matter is not placed in Court within the time frame as provided in the first proviso then the pre-emptor cannot be blamed and penalized for such non-deposit as the deposit of zar-e-soim is subject to the order of the Court and this Court in such circumstances by upholding the principle that an act of Court shall prejudice no man, has condoned such default.
Reference can be made to the case of Nabi Ahmed us. Muhammad Arshad (2008 SCM R 1685).
However, in such cases upon realizing its mistake the. Court while granting time for payment of zar-e-soim would not be exercising power under the first proviso which empowers the Court to grant any period of time upto 30 days in one go or by extending the period from time to time upto the maximum of 30 days but would remedy its fault under the age old principle "Actus curiae neminem grauabit" i,e, an act of the Court shall prejudice no man, therefore, once a reasonable time is granted for deposit of zar-e-soim to remedy its mistake, the Court shall have no power to extend and grant further time. Even otherwise, time for deposit of zar-e-soim is not granted to the pre-emptor to generate fund from his resources as the pre-emptor must have in his pocket one- third of the sale price of the property sought to be pre-empted while approaching the Court.
11. In the instant case, the plaint was presented on 11.8.2006 and since the pre-emptor was seeking interim relief, therefore, the case on that very day was presented before the presiding officer who directed issuance of notices to the defendant for 2.9.2006, however, somehow the other omitted to pass an order directing the pre-emptor to deposit the zar-e-soim. It appears that the suit was formally registered on 2.9.2006 when it was fixed in Court for hearing. The Court upon realizing its mistake of not passing an order for depositing the zar-e-soim on the first date of hearing directed the deposit of zar-e-soim by 11.9.2006 i,e, exactly within the unexpired period of 30 days from the date of filing of the suit. It appears that the respondent on 7.9.2006 two days before the expiry of statutory period of 30 days moved an application seeking extension in time at his own risk for the deposit of zar-e-soim which application was placed in Court 11.9.2006 and in the absence of appellant/vendee the Court extended the time for deposit till 16.9.2006. This extension of time for deposit zar-e-soim after the expiry of statutory period of 30 days in the circumstances could not be sustained.
12. These are the reasons for the short order of even date whereby we by allowing this appeal, had dismissed the suit.